The New Troika of Concepts Coming at Ill. Claims Handlers
Thursday, October 6, 2011 | 0
One of these concepts is coming right out of the blue. The other two are in the new 2011 Amendments. To us, it is mildly bewildering but if you want to stay ahead of the game in these difficult times, read on.
First, we are now advised Illinois Trial Lawyers Association and its members in the workers' compensation community are trying to strip out the ability of the defense industry to hire our own vocational experts. We have been advised it is becoming the position of the petitioner's bar that claimants in this state have developed an unfettered "right" to choose the only vocational counselor on all claims. The right includes having to pay TTD/maintenance while their sole choice of voc counselor maximizes their claim at the employer's cost. In our view, the "right" to be provided to the claimant bar in this state includes an irreversible and final reliance upon their opinions about employability/return to work by arbitrators and commissioners alike-if we aren't allowed our own experts, Illinois employers may be forever blocked from litigating the issue. Effectively, it appears the Illinois Trial Lawyers Association is trying to immediately and indefinitely end the ability of Illinois employers to defend themselves on the biggest of workers' comp claims, as it is their position employers can no longer hire and provide vocational counseling at their sole cost.
We are starting to wonder if they also want to:
- Force Illinois employers to hire the nurse case manager of claimant's choice at the employer's expense;
- Have employers hire the IME doctors of claimant's choice at the employer's expense;
- Make all experts the sole "right" of claimant to select at the employer's expense;
- End all litigation, defense experts and legal or factual defenses.
We ask the rhetorical question of the claimant bar, why wouldn't every claimant attorney recommend to every single client you have to use such voc counselors on every single broken finger, sunburn or elbow strain? Wouldn't Illinois employers then have to pay lifetime WC benefits on every single claim? If the answer to the inquiry is no, we would love someone to advise how would we controvert any claim or effectively litigate it. To us, it appears this unprecedented concept means we have no "right" to defend our clients.
At present, the lead and "test" ruling on this concept is pending in the Circuit Court of Cook County. If you want a copy, send a reply. We are petrified to see it move to the Appellate Court for fear the trial lawyers will get a legal ruling that will toss this system completely up for grabs. Most observers were hoping we weren't going to have to go back to the legislature about another change that is certain to directly impact the highest of Illinois workers' comp claims. We are simply going to have to take a wait-and-see approach on this 800-pound gorilla.
Secondly, we are now advised the only "valid" way to dispute medical necessity in this state will be with a utilization-review analysis by a URAC-compliant vendor. In effect, this may end the ability of independent medical examiners to validly opine about issues relating to medical necessity of care. We also note this appears to us to contradict Section 8.7 of the Illinois Workers' Compensation Act, which says, in part: "Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review ... " Later in the same section, the Act further states: "An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12."
The focus of the veteran lawyer who advised us of this issue focused on Section 8.7(i)(3) of the Workers' Compensation Act, which says: "An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this section."
Finally, Section 8.7(j) creates a rebuttable presumption denial of care using utilization review is correct and shields the employer from penalties when it says: "When an employer denies payment of or refuses to authorize payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act."
We feel there is some conflict in the language of the newly amended Workers' Compensation Act and hope reasonable Commission rulings can lead the innocent participants on both sides out of this legislative morass. We caution our readers, if you want to attack overtreatment and overbilling, it appears you may want to send all records and bills to a UR provider.
Thirdly, as fast as you can remember to attack medical necessity with utilization review or UR, you also aren't supposed to be able to use utilization review for causal connection!!! Section 8.7 limits UR when it says: "Only a health care professional may make determinations regarding the medical necessity of health care services during the course of utilization review." There is no provision allowing a UR provider to comment about causal connection and we are told the best path to do so is with a qualified IME provider. Again, if you want IME recommendations across Illinois, send a reply.
In sum, we are advised you are going to need an IME to dispute issues relating to causal connection based on the limitations in this new section. Yes, we agree it is all blurring. Yes, we feel getting into a workers' compensation preferred provider organization is a much better alternative.
<i>Eugene Keefe is a founding partner of Keefe Campbell and Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.</i>
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